In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Ben Barros

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Energy sprawl - the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities - is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects - especially large-scale projects that require large-scale transmission and distribution infrastructure - contribute to energy sprawl. This Article does not aim to stop large-scale renewable energy projects or even argue that policymakers focus solely on land use in determining whether energy projects are allowed to proceed.

Rather, it proposes that we advance the legal institutions necessary to facilitate one possible solution to energy sprawl: the alternative energy microgrid - that is, small-scale distributed generation between neighbors of energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells. Microgrids are attractive from a public policy perspective. They decentralize energy production, reducing the need for massive transmission lines and large centralized plants. They allow property owners to achieve economies of scale by spreading the costs and the risk of installation and maintenance among many parties. They provide cleaner alternatives to conventional energy methods of production. And they improve system efficiencies by reducing the amount of energy lost during transmission across long distances to end users.

Despite such benefits, regulatory, political, and economic barriers thwart microgrids. For example, state laws prohibit or severely limit their viability, while neighbors may object to living nearby. This Article offers three proposals to address such barriers. First, Congress should require states to consider a model standard for microgrids, just as it has required states to consider model standards in other areas of utility law. Second, states should provide guidance to localities with respect to siting and permitting microgrid projects. Third, states should develop and authorize legal institutions that would support microgrid projects, drawing from Professor Robert Ellickson’s proposal for block improvement districts, which accommodate the public-private nature of shared energy. Together, these proposals would support small-scale energy sharing collectives whose emergence could transform the American landscape.

Ben Barros

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Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Ben Barros

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Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. Specifically, the innovations involve using impervious cover TMDLs, residual designation authority, and collective permitting. More generally, the innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. I conclude that the innovations, while raising some new problems, represent a promising shift, and it discuss additional reforms and research needed to better reconcile legal water quality standards and traditional land development patterns.

Ben Barros

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Professor Kali Murray of the Marquette University Law School and Chair of the 2010 AALS Section on Property Law is pleased to announce that the Section will be doing a joint program with the Agricultural Section (where Professor David Myers of Valparaiso University School of Law is the current chair) for the annual meeting next year (January 2011) in San Francisco.

The joint program will focus on "Changing Conceptions of Water in Law."

If you would like to submit a paper, we would love to hear from you by March 30, 2010. Please send us a working title and a brief description of your paper. The paper will be published in a law review so we can only consider unpublished articles for possible inclusion in the AALS panel. If interested, please contact us at kalimurray@marquette.edu, or david.myers@valpo.edu. Please be sure to include both of us on your email submissions.

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The Associated Press ran an interesting story yesterday about the final days of Centralia, Pennsylvania, which has rested for decades above an intense, underground coal fire. The federal government condemned the town in the 1980s and 1990s, but a hand few of holdouts have remained. The state government now appears to be getting serious about removing them. This story presents a lot of interesting property aspects -- from environmental concerns to eminent domain policy to the relationship between property, place and personal identity. Interested readers can find a number of resources on Centralia here, although I can't vouch for any of them personally.

Mike Kent

P.S. Thanks to Stetson Law student Emily Pabalan for bringing the story to my attention.

[Comments are held for approval, so there will be some delay in posting.]

A proposed law would require new homes, larger developments and some redevelopments in Los Angeles to capture and reuse runoff generated in rainstorms.

The ordinance approved in January by the Department of Public Works would require such projects to capture, reuse or infiltrate 100% of runoff generated in a 3/4 -inch rainstorm or to pay a storm water pollution mitigation fee that would help fund off-site, low-impact public developments. . . .

Under the ordinance, builders would be required to use rainwater storage tanks, permeable pavement, infiltration swales or curb bump-outs to manage the water where it falls. Builders unable to manage 100% of a project's runoff on site would be required to pay a penalty of $13 a gallon of runoff not handled there -- a requirement the Building Industry Assn. has been fighting.

"The Building Industry Assn. is supportive of the concept of low-impact development and has invested a lot of time and energy in educating our members on those techniques and advancing those technologies," said Holly Schroeder, executive officer of the L.A.-Ventura County chapter of the association.

"But when we now start talking about using LIDs as a regulatory tool, we need to make sure we devise a regulation that can be implemented successfully."

Schroeder said that some building projects, such as those in downtown L.A. or areas where the soil is high in clay, would have difficulty with the 100% retention rule and that the $13-a-gallon mitigation fee is too high. A one-acre building on ground where runoff could not be managed on site, Schroeder said, could pay a fee as high as $238,000.

"We're seeking flexibility to reflect the site circumstance," she said.

Ben Barros

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This essay argues that the dominant liberal conception of private property, implemented and operating in legal systems worldwide, permits power - or choice - over the use and control of goods and resources so as to prioritise self-interest over obligation towards the community, both local and global. This, in turn, is one of the components of modern social life making possible the complex processes that produce both anthropogenic climate change and its consequences for humanity.

Ben Barros

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This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Ben Barros

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The University of Houston Law Center and the Environmental & Energy Law & Policy Journal are pleased to announce a Symposium on Climate Change, Water, and Adaptive Law to be held on Friday, February 26, 2010, from 8:00 a.m. to 5:00 p.m. at the Czech Center Museum, 4920 San Jacinto, Houston, Texas 77004. Leading experts from diverse universities, disciplines, professional backgrounds, and policy making roles will address how law and the legal system need to adapt to address the impacts of climate change on water resources and regimes, and the extent to which it can.

Speakers include:

Panel on State and Local Adaptation to Climate Change’s Impacts on Water:

1. Robin Kundis Craig, Attorneys’ Title Professor and Associate Dean for Environmental Programs, Florida State University College of Law (Opening Presentation of the Symposium)

2. Noah Hall, Assistant Professor of Law, Wayne State University Law School; Visiting Professor, University of Michigan Law School; Executive Director, Great Lakes Environmental Law Center

3. Craig Anthony (Tony) Arnold, Boehl Chair in Property & Land Use, Professor of Law, Affiliated Professor of Urban Planning, Chair of the Center for Land Use & Environmental Responsibility, University of Louisville; Symposium Visiting Professor, University of Houston Law Center

4. Kathleen Miller, Scientist III, Institute for the Study of Society and the Environment, National Center for Atmospheric Research

Symposium Description: "Water use and climate change share a complex, dynamic, multiscalar interdependence. Water use contributes to climate change in the energy used to transfer water substantial distances, the destruction of carbon-sequestering vegetation and erosion of soils (and the subsequent release of greenhouse gases into the atmosphere) from too much or too little water, and the facilitation of sprawling (and arguably unsustainable) development, among other relationships. Hydropower has been suggested as an alternative energy source that reduces emission of greenhouse gases, but poses a variety of other ecological and social concerns. Perhaps most importantly, climate change will affect water supplies and watersheds, contributing to water scarcity, rising sea levels, saltwater intrusion into groundwater, more severe storm-event cycles that alter watershed hydrology, and changes to riparian vegetation and stream structures that similarly alter watershed functioning and composition. This symposium will address the capacity of water law to adapt to the changing, uncertain, and potentially extreme demands and stresses that climate change -- and our responses to climate change -- will put on water resources."

For more inhttp://www.law.uh.edu/eelpj/symposium.html, or contact Chief Symposium Editor/Director - Lisa Baiocchi-Mooney, lcbaiocc@central.uh.edu. The Symposium will offer 8 hours of CLE credit for the State of Texas.

Sara C. Bronin (U Conn) has posted two related articles on SSRN. The first is Solar Rights:

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.

Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.

Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.

A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.

Ben Barros

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The rapid pace of U.S. wind energy development is generating a growing number of conflicts over competing wind rights. The “wake” of a commercial wind turbine creates turbulence and unsteady wind flow that can reduce the productivity of other wind turbines situated downwind. Existing law is unclear as to whether a landowner who installs a wind turbine on its property is liable for the lost productivity of a downwind neighbor’s turbine resulting from such wake effects. Legal uncertainty as to how competing wind rights are shared among neighbors can induce wind energy developers to abandon otherwise lucrative turbine sites situated near property lines, thus forfeiting valuable wind resources. This paper applies Calabresi and Melamed’s familiar “Cathedral” model to determine which rule regime would best promote the efficient allocation of competing wind rights while maintaining consistency with existing law. Surprisingly, the Cathedral model’s infamous and rarely-applied “Rule Four” seems best-suited for addressing these conflicts.

Ben Barros

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This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside of public law, and identifies anti-entrenchment protections designed to prevent the worst abuses. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench an anti-development agenda.

Ben Barros

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This article briefly surveys the evolution of the public trust doctrine in 19th and 20th century America and discusses some notable recent developments, particularly in the doctrine's scope. It also discusses a treatise project on the public trust doctrine the author is undertaking with a colleague as well as three recent student publications the project has produced on the federal common law nature of the doctrine, its applicability to uplands like parks and beaches, and the adoption of the doctrine in the 2008 Great Lakes Compact. The article serves as an introduction to the publication of two of those articles.

Ben Barros

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Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate effectively, solar panels require un-shaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statutory approaches to protecting solar access for such landowners vary widely across jurisdictions, and some approaches flatly ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the constraints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to evaluate a model solar access statute recently drafted under funding from the US Department of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts.

Ben Barros

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The use of private property rights to regulate natural resources is a controversial topic because it touches upon two critical issues: the allocation of wealth in society and the conservation and management of limited resources. This book explores the extension of private property rights and market mechanisms to natural resources in international areas from a legal perspective. It uses marine fisheries to illustrate the issues that can arise in the design of regulatory regimes for natural resources. If property rights are used to regulate natural resources then it is essential that we understand how the law and values embedded within legal systems shape the development and operation of property rights in practice. The author constructs a version of property that articulates both the private and public function of property. This restores some much needed balance to property discourse. He also assesses the impact of international law on the use of property rights - a much neglected topic - and shows how different legal and socio-political values that inhere in different legal regimes fundamentally shape the construction of property rights. Despite the many claimed benefits to be had from the use of private property rights-based management systems, the author warns against an uncritical acceptance of this approach and, in particular, questions whether private property rights are the most suitable and effective arrangement means of regulating of natural resources. He suggests that much more complex forms of holding, such as stewardship, may be required to meet physical, legal and moral imperatives associated with natural resources.

Ben Barros

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The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

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For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West. Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. . . . . Science has also stepped forward to underline how incorrect the old sweeping legal generalizations were.

A study in 2007 proved crucial to convincing Colorado lawmakers that rain catching would not rob water owners of their rights. It found that in an average year, 97 percent of the precipitation that fell in Douglas County, near Denver, never got anywhere near a stream. The water evaporated or was used by plants.

Ben Barros

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